England and Wales Court of Appeal (Criminal Division) Decisions

RATTIGAN and TERENCE EDWARD WYATT, R v. [2000] EWCA Crim 73 (19th December, 2000)

Case Nos: 2000/00031/X3

2000/00032/X3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London,

WC2A 2LL

Tuesday 19^th December 2000

LORD JUSTICE POTTER:

INTRODUCTION

1. On 8^th December 1999 in the Crown Court at Lewes before Potts J and a jury, the Appellant Rattigan and the Applicant Wyatt were each convicted unanimously of murder, and on the same date were sentenced to life imprisonment. On 27^th November 2000 we dismissed Rattigan's appeal against conviction by leave of the single judge, and the (non-counsel) application for leave to appeal against conviction of Wyatt, following refusal by the single judge. We stated that we would give our reasons later and do so now.

2. On the morning of 17^th December 1998, the body of 88-year-old Mrs Hilda Tizzard ("the victim") was found at her flat in a block of sheltered housing called The Poynings. Her hands and feet were tied, she had suffered numerous injuries during the night. The cause of death was compression of her neck with a ligature formed from a T-shirt tied round her neck. Rattigan and Wyatt both admitted having burgled the victim's flat the previous night, and the cause of death was not in dispute. Each denied murder, blaming the other. The prosecution put the case against both on the basis of joint enterprise. The issue for the jury was whether either or both of the accused had the necessary intent and were responsible for the victim's death.

THE EVIDENCE

3. The evidence for the prosecution was as follows: The two accused had been released from Chichester Police Station on the afternoon of 16^th December 1998 having been held overnight on suspicion of theft. They spent the evening of 16^th December 1998 drinking at a public house in Bognor Regis with two female friends called Sonia and Jamey. They left at about 10.30 to 11 p.m. and returned to Sonia's flat in Bognor Regis where there was an argument between Rattigan and Wyatt. Jamey said that Wyatt was winding Rattigan up. Rattigan attacked him and Wyatt ended up lying on the floor. His head was cut. Both men left the flat at about 11.45 p.m. ostensibly to go to Chichester Hospital. Later Jamey and Sonia went to the hospital to pick them up, but they were not there. The women returned to their flat in Bognor at about 1.30 a.m. to find the two men outside the flat. They said that they had not been to the hospital but had gone to Worthing instead. After an expedition to buy some cigarettes, Rattigan and Sonia went to bed together and Wyatt stayed in the same room as Jamey. In cross-examination she described an occasion the month before when Rattigan and Wyatt had brought two stolen mountain bikes to the flat. She also agreed that she had on occasion offered to act as "look-out" when Rattigan was burgling. There was also an occasion earlier that month when stolen items were brought back to the flat.

4. At 1.41 a.m. on the night of 16^th/17^th December, the police received a 999 call, reporting a burglary at The Poynings. The caller said he was from Brighton and gave his name as "Elkins". He said he had seen two men running from the building in the direction of the railway station and had heard someone shouting behind them. The caller said he was calling from Lewes. Subsequently a police officer heard the tape of the call and identified the voice as being that of Rattigan (as was not disputed).

5. Mr Smith, the manager of Poynings said that the victim was physically fit, although profoundly deaf and sometimes confused. He had the care of her pension book as she sometimes mislaid things, and on Wednesday 16^th December had given her £33.90 which he saw her put into a small plastic wallet with her credit cards. [That wallet was later recovered from nearby where Rattigan had thrown it]. On the morning of 17^th December at about 9.30 a.m. he entered the victim's flat with her care worker and found her body on the floor, and he called the ambulance and the police. Mr White, a paramedic who arrived soon after, checked the victim's pulse with difficulty because of the material tied tightly around her neck. Her hands were tied together so tightly that the ligature was cutting into the skin. The same ligature ran to her feet which were also tied together. The Scenes of Crimes Officer moved the victim's body finding underneath it two pieces of leather strap, four pieces of string and two pieces of cloth. He noticed two paper envelopes on the floor and found shoe marks on the grass at the rear of the building. A forensic expert gave evidence that footprints outside the window and also upon the two envelopes found within the flat corresponded to shoes belonging to Rattigan and Wyatt which were later obtained by the police.

6. Dr Borek, the prosecution pathologist who examined the victim's body said that the T-shirt ligature tied around her neck was flush with the skin but not cutting into it. The complex set of bindings from shoelaces secured her left wrist and right thumb to her ankles. Her hands were tied in front of her body, the ligature around the right thumb being very tight and deeply indented the skin. Scattered petechiae (pin-point haemorrhages) were present in and around the left eye and over the neck, all consistent with pressure from the ligature around the neck, as was congestion found in the scalp lower face and earlobes. There were 18 minor abrasions to the face, head and neck including an area of injury to the upper lip and scratch under the skin, which might have been caused as the victim struggled. There were 21 bruises and abrasions on the right arm and 15 on the left, including marks made by the ligatures. There were further abrasions and bruises to the legs and back of the trunk. Bruising around the nostrils and chin led Dr Borek to conclude that there had been a blow to the mouth splitting the upper lip and bruising the tongue. There was deep bruising to the muscles of the neck and its deeper tissues consistent with significant pressure which, in Dr Borek's view was far greater than would have been caused by the ligature in the condition that she found it after death. It would have had to have been tighter at an earlier stage. There were six areas of injury to the trunk, the most significant of which was a fracture to the sternum of a type which would have been caused by a blow or firm pressure. Further bruising to the chest wall and corresponding bruising to the back indicated a similar cause, such as would come from a person kneeling upon the victim's chest. Dr Boric concluded that the cause of death was asphyxia following compression of the neck with a broad ligature, the facial injuries suggesting an attempt to smother associated with a struggle. The appearance of petechiae in the eyelids suggested that the pressure on the neck must have been sustained for a minimum of 15 to 30 seconds.

7. The evidence of the Defendants was as follows.

8. Rattigan accepted that he had several previous convictions for offences against the person and property, including robbery, and for dishonesty. He said that having served a sentence for causing grievous bodily harm he had attempted to change his lifestyle, meeting and forming a friendship with Wyatt in April 1998. They had embarked together on a health course at Chichester College where they met Sonia and Jamey who were students on the same course. All four became friends. In November 1998 he had started stealing again. He said that following his release from custody with Wyatt on the afternoon of 16^th December they went to a flat in Canada Grove and in the evening went out drinking. They returned to the flat about 10.20 p.m. and where he and Wyatt had an argument and he hit Wyatt who did not retaliate. They left the flat to go to hospital, but Wyatt said he did not need to go, so they walked around for a while and decided to commit a burglary. Rattigan stole a Metro car and they drove around eventually coming to the block of flats at The Poynings. Having discovered an open window at the rear of the building, he looked through the window and saw the light was on in a room which appeared to be empty. He pulled the window open and climbed through it, Wyatt following. He began to search the bureau and Wyatt went towards the front door to begin searching there. He said he would not have entered the flat had he known that someone was there. Having searched the bureau he went to the bedroom area and found a handbag in the wardrobe. He took a wallet which he found in the handbag. At that point he heard a door open. He said he turned to Wyatt who was at the other side of the room and said "come on", jumping out of the window immediately without seeing anyone come in. He returned straight to the car and did not look back to see if Wyatt was following. He said he did not find the victim's pension money. He only looked through her wallet after leaving the flat, having stolen it in the hope that it contained money.

9. Rattigan said that, having left the flat, he sat in the car for 20 to 25 minutes waiting for Terry Wyatt in the belief he could not find the car. Wyatt returned to the car and Rattigan said "what kept you?", but Wyatt did not reply. Nor did he say anything of what had happened on the journey back to Sonia's flat. Rattigan drove to the back of some flats near Canada Grove, parked the car and left it there. He said that it was only as they were walking towards Canada Grove that Wyatt told him that an old lady had come into the flat, that he had panicked and tied her up. Rattigan said that he told Wyatt that he was going to phone the police and did so, despite Wyatt's attempts to persuade him not to. Rattigan said that he had no idea that the victim was dead or dying; he simply wanted the police to untie her. He said that the name "Elkins" was the first that came into his head. He said that they had not told Sonia and Jamey anything. He said that he did not find out that the victim had died until Wyatt told him so on the evening of Friday 18 December, having heard it on the radio. They did not discuss what they would say if they were arrested. On Monday 21 December he was arrested and interviewed, being re-interviewed several times on 22, 23 and 24 December before being charged with murder on 24 December. He made no comment at any of the interviews. He said that that was because he was distressed and afraid and did not want to be seen as a "grass".

10. Wyatt, giving evidence, confirmed his meeting and friendship with Rattigan. He said he was aware of Rattigan's criminal past and had seen him inject heroin on one occasion. He knew that Rattigan was carrying out burglaries and that he had become involved in drug dealing by the end of September 1998. He said that at the end of November he had stolen two mountain bikes with Rattigan and they had also carried out a burglary together when he (Wyatt) was drunk. He confirmed his and Rattigan's movements and the incident at the flat at Canada Grove. He said that, Rattigan having offered to take him to hospital, they left the flat together heading towards the railway station in order to go to Chichester Hospital by train. However, Rattigan told him they were not going to hospital but to do a burglary. Wyatt said he refused, but Rattigan held a screwdriver to his stomach and threatened to stab him if he did not go with him. Wyatt said he was petrified and agreed to act as look-out. He said that Rattigan broke into the Metro and told him to get in. They arrived at the building which he now realised was The Poynings. Rattigan announced they would do a burglary there and, following another argument, Wyatt agreed to stay outside the back as look-out. When Rattigan found the window was open, Wyatt gave him a leg-up in order to get in, but remained outside himself. He then heard Rattigan's voice telling him to come inside and he jumped in. He saw that Rattigan had someone on the floor and was holding one hand over the person's mouth and the other around the collar area, with his knee on the person's chest. Rattigan told him to hold on to the person whom he realised at that point was a woman. He put his hand over her mouth while Rattigan ransacked the flat. Rattigan then told Wyatt to take his hand off her mouth and asked the woman repeatedly where her money was. She said at first it was in the teapot and then began to shout for help. At this Rattigan lost his temper and punched her three times in the chest. Wyatt said he tried to intervene. He said that it had not crossed his mind that Rattigan might beat her up or kill her. They then heard a noise and Rattigan said that they had to tie her up to prevent her raising the alarm. He said that Rattigan tried unsuccessfully to tie her hands with a cloth and then told Wyatt to do it. Wyatt said he pulled the laces out of two pairs of shoes and he and Rattigan both tied her up. Rattigan pulled a cloth tightly round her mouth in order to gag her. He said that he (Wyatt) had had to tie her thumbs tightly because she was flapping her hands while he was tying the knot.

11. Wyatt said that he then headed towards the window and heard the woman gurgling. He looked back and saw that Rattigan was pulling the gag tighter; he warned him he was choking her and loosened the gag. The woman appeared to have fainted and Rattigan appeared to begin an attempt at artificial respiration. Wyatt said he knelt beside her and checked that she had a pulse and was breathing. He scooped the contents of her handbag which Rattigan had given him back into the bag and left through the window. He looked back to see Rattigan throwing cushions and bedding over the victim before he left. Rattigan snatched the bag from him and threw it over the hedge (where it was found later by the police). Wyatt said he looked through the window to check that the victim was all right and saw her move. It was his immediate wish to telephone the police, but Rattigan told him there was no need to do so because he had pulled the alarm as they were leaving.

12. In cross-examination Wyatt suggested that the victim must be been strangled between the time he had checked her pulse and gone to the window. He said that Rattigan remained aggressive as they returned to the car and made their way to the bottom of Canada Grove where they dumped the car near the flats. He said that he (Wyatt) went to the phone box in order to call the police, but Rattigan snatched the phone from him and, after an abortive attempt to report the matter to the Samaritans, they telephoned 999. On Friday evening he heard that the victim was dead; his reaction was disbelief. He told Rattigan the news and was told to keep quiet. When Rattigan was arrested on 21^st December, Wyatt attended the police station and made a witness statement in which he gave a lengthy explanation as to his and Rattigan's movements over the period, much of which was untrue. In particular, it did not reveal the participation of either of them in the burglary and killing. He said that he had lied because he was afraid of Rattigan and also being charged with murder himself. Not long after giving his witness statement he was arrested on 21 December and interviewed in the presence of his solicitor on 22 and 23 December. At those interviews he made no comment and was charged with murder on 24 December. Questioned about his physical involvement in the attack on the victim, he said that he had put his hand over her mouth, on Rattigan's instructions to stop her calling out. While he did so she was humming hymns and not struggling. When Rattigan asked her "where's your fucking money", she mentioned a teapot. He said he could not explain why he had not called an ambulance afterwards, but repeated that he had been afraid.

The Application of Wyatt

13. At trial an application was made on behalf of Wyatt to exclude the evidence of his witness statement, made on 21 December 1998 for his arrest. The defence submitted it was clear that Wyatt was by that time suspected of participating in the killing of the victim and that therefore he should have been cautioned (which he was not) prior to being interviewed and making a statement. The Judge held a voir dire, hearing evidence from the police officers supervising the case, Detective Chief Inspector (by then Detective Superintendent) Ladley and Sergeant Dixon; also from Detective Sergeant Buttle who interviewed Wyatt and took the statement.

14. When rejecting the application, the Judge stated that he considered the evidence of Ladley and Buttle was of crucial importance. It was clear from the contemporaneous notes made by Ladley, and from his evidence, that Wyatt was regarded and noted as a "significant witness" rather than a suspect (the description accorded to Rattigan) at the time he made his statement. The Judge said that the officers had no reason to consider Wyatt a suspect from an earlier visit to Canada Grove, when they were simply trying to find the whereabouts of Rattigan and spoke briefly to Wyatt. Rattigan was arrested at 5 p.m. on 21 December and Wyatt, who was with him at the time, accompanied the police to the police station. Wyatt was then taken to Chichester so that his interview could be recorded on video; the Judge said that he accepted Superintendent Ladley's evidence that it was normal practice to record interviews with significant witnesses on video. He also accepted Ladley's assurance that, prior to interview, he was not aware that Wyatt had a criminal record and he had no grounds to believe that Wyatt had been involved with Rattigan in the murder. It was only when Ladley obtained Wyatt's account from the officers who conducted the interview and became aware that he claimed to have been at the flat in Canada Grove at the relevant time, contrary to the account the police had earlier received from Jamey, that Wyatt became a suspect, and he was arrested at 11.30 p.m. that night. The Judge also concluded that Buttle, who had interviewed Wyatt for several hours, had no reason to treat him as anything other than a witness.

15. Having seen extracts from the video of Wyatt's interview, the Judge accepted Buttle's account that the purpose of the interview was to find out the movements of Rattigan over the relevant period and that, had Wyatt made any admissions or appeared to implicate himself in any way, Buttle would have proceeded to caution him. The Judge found that at no stage was any such admission made and that Wyatt did not achieve the status of a suspect prior to comparison of his statement with the information received from Jamey.

16. The principle ground of Wyatt's application for leave to appeal is that the Judge wrongly allowed the admission of the witness statement taken from Wyatt for the purposes of cross-examination by both the co-defendant and the prosecution as to the lies which were told in it. It is said that the admission of the statement, which was referred to in closing speeches and the summing-up, undermined Wyatt's credibility and substantially prejudiced his case.

17. It may well be the fact that lies were told in that statement and that Wyatt sought to distance himself and Rattigan from the scene of the crime did undermine Wyatt's credibility. However, the police were not obliged to caution Wyatt if they reasonably regarded him only as a witness and not as a suspect as the judge found, nor are we persuaded that there are any grounds for interfering with the findings of the judge or the exercise of his discretion.

18. The grounds of appeal against conviction settled by Counsel on behalf of Wyatt which failed to persuade the single judge to grant leave, were supported by an advice in which those grounds were elaborated. That advice asserts that the police had grounds to suspect Wyatt because he was an associate of Rattigan's, living with him at Canada Grove and known to have been released from Chichester Police Station earlier that day. He was also with Rattigan at the time of his arrest. However, it is also acknowledged that the second man suspected of participation in the crime with Rattigan was a man called Lovegrove, also known as an associate of Rattigan and living near Canada Grove. It is said that, on that basis, and the content of the video interview, at which DC Buttle told Wyatt that he was being questioned with regard to his (not Rattigan's) movements at the time of the murder, indicate that the Judge was wrong in the view which he took and the ruling which he made. We do not accept that argument. The Judge gave lengthy and careful consideration to the arguments raised on Wyatt's behalf at the time of the application and was in the best position to make a judgment whether, at what was a very early stage of the police investigations, they had reached the point when the police ought reasonably to have regarded and treated Wyatt as a suspect. We see no good basis on which to interfere with the decision of the Judge in that respect.

19. The second point taken in the grounds of appeal settled by Counsel is that, at one point in the summing-up, the Judge referred to Wyatt accepting in evidence that he had put his hand over the victim's mouth and nose, when in fact he only admitted covering her mouth. We do not have a transcript of the evidence of Wyatt. The Judge was plainly quoting from his notebook in the passage complained of, which reads as follows in the transcript of the summing-up:

"I put my hand over her mouth because I was told to do it. It was like a nightmare. I had my hand over her mouth, on her nose, to stop her shouting; and one under her chin. She was humming hymns; she was trying to calm me down. I didn't think to take my hand off her mouth. She was not struggling. It was then she was asked by Rattigan: `Where's your fucking money?' and mentioned a teapot."

20. If, as Counsel suggests in his advice, that note was erroneous, we do not think that, on its own, the mistake amounts to a ground of appeal. It is stated in counsel's advice that the point was not sought to be made a subject of correction before the jury, because to have done so would only have highlighted a part of the evidence against Wyatt, which, even on his own story, showed his participation in the violence and restraint applied to the victim. In any event, the remark that Wyatt's hand was on her nose does not in itself indicate that he was obstructing her breathing at the time and his evidence was plain that he took his hand away in order that she could answer Rattigan's questioning. Accordingly we do not think there would be any prospect of establishing that the verdict was unsafe upon the ground asserted.

21. In further grounds of his own composition, Wyatt complains under six heads which are additional to those already settled by counsel and which are supported by an "Advice" also in Wyatt's own hand, elaborating on those grounds. We have read both documents carefully and, for the reasons briefly indicated below, find that they afford no arguable grounds of appeal.

22. First it is complained that the judge erred in ruling inadmissible under s.78 of the Police and Criminal Evidence Act a cell confession allegedly made by Rattigan to a witness/fellow prisoner called Sims. The judge cannot be faulted for his decision in this respect in relation to evidence sought to be adduced by the prosecution. If, for the purposes of Wyatt's defence, direct evidence of the confession was required, that was a matter for Wyatt's solicitors.

23. Second, it is complained that the judge allowed the prosecution to adduce evidence from Jamey which supported Rattigan's defence, while directing the jury to disregard it in relation to Wyatt. It is not made clear to which aspect of the evidence this complaint refers, but there is no reason to suppose that the judge was in error in this respect.

24. Third, it is complained that Wyatt's advisors failed to follow up allegations that he had been unlawfully detained in December 1998 prior to the taking of the witness statement to which we have referred and fourth, that the defence negligently delayed in instructing a pathologist on behalf of Wyatt so as to be able to contest the findings of the police pathologist. Neither of these deficiencies can afford a ground of appeal and we note that in relation to the fourth complaint no tangible disadvantage to the defence of Wyatt is identified.

25. Fifth, there is a further complaint of negligence on the part of the defence in failing to investigate Wyatt's claim that it was he who made a telephone call to the Samaritans, before Rattigan took over and phoned the police. In that respect it is said he was disadvantaged in that Rattigan was enabled to appear to be the party actively concerned for the victim's welfare, rather than Wyatt. While it may be that in this respect Wyatt was placed at a disadvantage, it cannot afford any ground for an appeal.

26. Finally, it is complained that counsel gave inaccurate and detrimental advice in first advising that Wyatt should exercise his right to silence in interview with the police and subsequently in advising that Wyatt's statement should deal with the details of the earlier burglary or burglaries. Again, such a complaint cannot now afford a ground of appeal.

27. In those circumstances, we dismiss Wyatt's application.

The Appeal of Rattigan

28. The Judge's summing-up to the jury on Tuesday 8^th December 1999 was a long and careful one which lasted all day. On the preceding Friday and Monday, the Judge had discussed and eventually agreed with Counsel before they addressed the jury a list of written questions to be placed before the jury as an aid to their deliberations and which the Judge incorporated and elaborated in his summing-up. This was plainly an advisable course because of the complications arising from the conflicting accounts of the Defendants in relation to the Crown's case of joint enterprise and the "cut throat" defences conducted.

29. Despite the agreement upon the list of questions, the broad ground of appeal in this case is that they did not provide an appropriate framework for the consideration of Rattigan's case, if factually accepted by the jury, and that the summing-up was an inadequate supplement so far as the Judge's legal directions in relation to `joint enterprise' and `withdrawal' from joint enterprise were concerned. In that respect the criticisms centre upon passages in the summing-up which extend over some four pages of transcript from which is it necessary to quote in some detail.

30. Having referred to the uncontested conclusion of the pathologist that the victim had died in consequence of the violence done to her, which neither Defendant had suggested was accidental or justified, the Judge gave the following oral directions (as to which, for convenience of reference, I have numbered the paragraphs quoted):

"1. It follows from that, that whoever you find is responsible for inflicting the violence, or was party to that violence, is - if you make those findings - at the least, guilty of manslaughter. And I did not understand, in the addresses of either Counsel for the Defence, any suggestion to the contrary ...

2. The Prosecution's case is that these defendants committed the offence of murder together. Where a criminal offence committed by two or more persons, each of them may play a different part; but if they are in it together, as part of a joint plan or agreement to commit the offence then they are each guilty ...

3. The words "plan" and "agreement" do not mean there has got to be any formality about it: an agreement to commit an offence may arise in advance, for example to go to a house and burgle and use violence on the householder if necessary. Or it may arise on the spur of the moment to do violence to the householder who disturbs the burglars. Nothing need be said at all; it can be made good with a nod or a wink, a knowing look; an agreement can be inferred from the behaviour of the parties. The essence of joint responsibility for a criminal offence is that each defendant shared the intention to commit the offence and took part in it, however great or small, so as to achieve that aim.

4. So your approach to this case should be as follows: If, looking at the case of either defendant, you are sure that with the requisite intent for murder - and I am going to use that expression from time to time, that means with intent to kill, or attempt to do really serious bodily harm - he committed the offence on his own, or that he took some part in committing it with his co-defendant, he is guilty. But bear in mind that mere presence at the scene of the crime is not enough to prove guilt; there must be participation in the offence.

5. Now, ladies and gentlemen, it is common ground here .. that there was a joint plan to commit a burglary. Not disputed. But if, on your findings, one defendant, in using violence on Mrs Tizzard, went beyond what the other had agreed or realised he might do, this defendant alone is responsible for the act and is therefore guilty of murder, if he had the requisite intention for murder, or, if otherwise, of manslaughter.

6. But if you are sure that the co-defendant realised that the other might use violence in furtherance of the burglary the law is that, by taking part in the burglary with that knowledge, he accepted the risk that his co-defendant could act in that way, he adopted his co-defendant's acts and is responsible for them.

7. In respect of each defendant remember this: if you are sure that that defendant joined in a joint plan or agreement with his co-defendant to do violence in the furtherance of burglary to Mrs Tizzard if necessary, the Crown must make you sure that he did not withdraw from the plan before the fatal blows were struck; that is, that he had not a change of mind and had made it clear to his co-defendant, by words or actions, his intention of withdrawing from the plan, that is in the sense of disassociating himself from the plan, and not merely escaping, before the defendant had time to act as he did."

31. The Judge proceeded shortly thereafter to take the jury through the agreed form of questions which were as follows:

"You should ask yourself these questions in respect of each defendant:

1. Are you sure that Mrs Tizzard died as a result of the violence inflicted upon her during the course of the burglary? If no, not guilty. If yes, go to Q2.

2. Are we sure that this defendant used such violence upon Mrs Tizzard? If yes, go to Q3. If no go to Q4.

3. Are we sure that when he used such violence against Mrs Tizzard he intended either to kill her or cause her really serious bodily harm (i.e. the requisite intent for murder)? If yes, guilty of Murder if no, guilty of Manslaughter.

4. Are we sure that the co-defendant used violence upon Mrs Tizzard with the requisite intent for murder? If yes, then go to Q5. If no, go to Q7.

5. Are we sure that this defendant was party to (i.e. took part in) a joint plan to do violence upon Mrs Tizzard and had the requisite intent for murder? If yes, guilty of Murder. If no, go to Q6.

6. Are we sure that this defendant realised at any time that his co-defendant might use violence upon Mrs Tizzard with the requisite intent for murder and nevertheless continued to take part? If yes, guilty of Murder. If no, go to Q7. (But note, that if the co-defendant went or may have gone beyond the scope the joint venture [i.e. did an act not foreseen as a possibility] this defendant not guilty of murder or manslaughter).

7. In the event of the co-defendant being guilty of manslaughter as defined, are we sure that this defendant was party to a joint plan to do unlawful violence to Mrs Tizzard with an intent falling short of an intent to do really serious bodily harm? If yes, guilty of Manslaughter. If no, go to Q8.

8. Are we sure that this defendant realised that his co-defendant might use unlawful violence short of any serious bodily harm upon Mrs Tizzard (and did so) and nevertheless continued to take part? If yes, guilty of Manslaughter. If no, not Guilty."

There then followed a question relating to Wyatt alone. In taking the jury through the questions, the Judge did not give any further direction of substance which varied or was at odds with the general directions earlier given.

32. The first point taken by Mr Gold, is that the paragraph I have numbered 1 in the oral directions, was inconsistent with the authority of R -v- Powell and English [1997] 4 All ER 545 in which the House of Lords quashed the conviction on a charge of murder of a secondary party where, despite being party to a joint attack on a police officer with wooden posts, his case was (which the jury might have accepted) that he was unaware that one of his co-assailants was carrying and might use a knife which was in fact the means by which the fatal injury was inflicted. Mr Gold submitted that the tightening of the ligature which appeared to have caused the death of the victim in this case could and should have been regarded as fundamentally different from the other violence used in the course of the attack. This submission seems to us entirely without merit. First, at that point in his summing-up the Judge was simply considering the position of a defendant whom the jury were satisfied was responsible for inflicting the violence in consequence of which the victim died. He had not yet moved on to consider the position of one whose liability was alleged to be secondary or to arise as a result of joint enterprise with the principal offender. Furthermore, as between the Defendants, it was Wyatt who, in effect, sought to run a Powell and English defence, whereas it was Rattigan's case that he had not inflicted or been party to the infliction of violence at all, having left the scene before the victim appeared upon it.

33. The second point of criticism made is that, when the Judge moved on to deal with the question of joint enterprise at the paragraphs numbered 2 and following, he did so in a defective manner. No objection is taken to the paragraphs we have numbered 2, 3 and 4. But paragraphs 5 and 6 are the subject of criticism. As to paragraph 5, Mr Gold has submitted that, whilst paragraph 5 is correct in respect of a defendant going beyond the common purpose ("what the other had agreed or realised he might do") it fails to spell out the consequences upon the co-defendant. That does not seem to us to be a good point. The Judge had already made the point in paragraph 4 that mere presence at the scene of a crime was not enough to prove guilt without there being actual participation in the offence and, in the paragraph criticised, he made clear that, if one defendant acted beyond what the other had agreed or realised he might do, that defendant alone was responsible for the act concerned. In relation to paragraph 6, Mr Gold, this time in context of the Judge's direction as to joint enterprise, makes the same criticism as in respect of paragraph 1, namely that the Judge does not there consider or explain the principle in Powell and English with reference to the possibility that by squeezing the T-shirt tight around the victim's neck so as to result in asphyxiation, one defendant might move beyond the scope of the joint enterprise. If paragraph 6 is considered in isolation then there is some force in the criticism. However, the paragraph was not uttered in isolation. It was uttered by way of counterpoint to the preceding paragraph where the Judge had made clear that if one defendant went beyond what the other had agreed or realised he might do that defendant alone was responsible for the act in question (i.e the Powell and English point).

34. The third criticism relates to paragraph 7 of the summing-up where the Judge dealt with the question of withdrawal from any joint plan or agreement to do violence in the presence of burglary. It is perhaps worth observing that was an issue which only arose on the defence advanced by Rattigan; however the Judge dealt with it in respect of "each defendant". Mr Gold accepts that paragraph 7 is an accurate statement of the position in respect of pre-planned violence, but complains that the Judge did not go on to deal with the position if the violence which occurred in the course of the burglary was "spontaneous". In that respect he relies upon the authority of R - v - Mitchell and King 163 JP.75. In that case, this court made clear that where two or more persons, without pre-planning spontaneously attacked another who died in consequence of the attack, but one of the attackers desisted and walked away before the fatal blow occurred, it was not necessary for the defecting attacker to escape conviction for murder that he should have communicated his withdrawal to those who were continuing with the attack, such express communication of withdrawal only being necessary in the case of a pre-planned attack. This decision is to be contrasted with the case of R - v - Becerra and Cooper 62 Cr. App. R. 212 in which it was held that where, on a charge of murder committed during the course of the burglary, a co-defendant had provided the killer with the knife used in the killing, it was insufficient to establish withdrawal that he had departed from the scene with the words "let's go" shortly before the stabbing.

35. Mr Gold submits that it was likely that the jury came to the conclusion that such violence as occurred was spontaneous upon the appearance of the victim on the scene. He submits that the jury should have been specifically directed that, if that were or might be so, and, if Rattigan's evidence of jumping out of the window was or might be true, he was entitled to be acquitted.

36. The answer to this submission, as advanced by Mr Langdale QC for the Crown, is as follows. Insofar as the Crown suggested, and the jury accepted, a preconceived plan to use violence, the direction of the judge was a correct statement of the law. Insofar as the jury might well have regarded it as a case of `spontaneous' violence, the matter was also adequately covered by the judge's direction upon joint enterprise and in particular his observation in paragraph 5 that `if, on your findings, one defendant in using violence on Mrs Tizzard, went beyond what the other had agreed or realised he might do, this defendant alone is responsible'. Mr Langdale submits that, insofar as the jury were not sure that there was any pre-planned violence before the burglary occurred, the case of Rattigan did not in fact call for a direction based on a defence of "withdrawal". That was because Rattigan's case was not that, having participated in a degree of violence applied to the victim, he withdrew from it. It was simply that he left the scene before any violence occurred.

37. We consider that, so far as concerns the directions of law which were given by the judge, Mr Langdale is correct that they were not open to criticism. We would add that, in any event, the question of `withdrawal' from a joint enterprise, and what constitutes an effective withdrawal, is in reality an aspect of the problem of assessing whether or not it has been established that a defendant who is alleged to be liable as an accessory has in fact encouraged or assisted the perpetrator of the particular offence with the requisite intent. In this case, with each party blaming the other as the perpetrator of the violence, that is the way the judge treated it. As a result of lengthy discussions between counsel and the judge, it was decided that the same series of questions should be posed in respect of each defendant, the judge first having directed the jury (as he did) as to the necessity for the prosecution to establish a `joint plan or agreement to use violence on the victim whether as a matter of pre-planning or as arising on the spur of the moment' when the victim first appeared on the scene, it also being made clear that one defendant could not be liable for an act of violence by the other which went beyond what the other agreed or contemplated. That is precisely the pattern which the summing-up followed.

38. Subject to one further point of criticism by Mr Gold as to the form of question 6, in answering the questions as directed, the verdict of the jury that Ratigan was guilty of murder must have been either on the basis that it was he who inflicted the fatal violence upon Mrs Tizzard (see questions 2 and 3) or that Wyatt did so, with Rattigan taking part in a joint plan to that end, each with the requisite intent for murder (see question 4 and 5), or that Wyatt did so with Rattigan realising that he might do so and nevertheless continuing to take part in the attack (see question 6). Further, in relation to question 6, there was a specific warning against a verdict of murder if Wyatt's violence went or might have gone beyond the scope of what was foreseen as a possibility.

39. The criticism of Mr Gold in relation to the form of the question 6 is limited to this. He says that by insertion of the words `at any time', the judge left open the possibility that, even if the jury accepted in toto that Rattigan's version was true or might be true, they might have found him guilty on the basis that, having left the scene before the occurrence of any violence, it occurred to him that Wyatt might be using violence upon Mrs Tizzard with intent to kill her, but nevertheless he stayed in the car ready to transport Wyatt from the scene.

40. We first note that the reason for the insertion of the words `at any time' as discussed between the judge and counsel was for the purposes of consistency with the judge's proposed direction that a shared intention to do violence could exist either as a result of a pre-existing plan or one arising on the spur of the moment. Second, that the wording of question 6 in any event called for consideration of Rattigan's state of mind prior to an attack by Wyatt in which Rattigan nevertheless continued to take part. Plainly, once he had jumped through the window (if he did) he would have ceased to take part in the use of violence. Third, it was never the case for the prosecution that Rattigan should be treated as guilty on the basis that he should have realised that violence was or might be used by Wyatt after he left the scene; nor did the judge so suggest in summing-up. In our view the point taken by Mr Gold is a fanciful one, taken with the benefit of hindsight and unrelated to the basis upon which the case was conducted and the directions discussed.

41. The short point in this appeal, as it seems to us, is first and last a complaint that the judge did not, as he easily could have done, specifically instruct the jury that, if they accepted Rattigan's evidence in toto (i.e.that there was no plan or anticipation of violence before the defendants entered the flat and that Rattigan had departed the scene through the window before the victim arrived on the scene), he was entitled to be acquitted.

42. So far as that is concerned, it certainly seems to us that, in a case of this kind where by reason of `cut throat' defences similar questions arise in the case of each accused, it is desirable to assist the jury by relating those questions specifically to the case advanced by each defendant. While the issues may be identical, their practical application usually needs to be tailored to the particular case of each defendant. However, in a case where the ingredients of the defence and the matters in respect of which the jury must be satisfied have been made clear and where (as the judge proceeded to do in this case) the evidence of each defendant is fully re-canvassed before the jury, a failure to do so will not necessarily render the conviction unsafe.

43. It is ultimately necessary to examine the overall effect of a summing-up to see whether, when the jury retire, the essential issues are clear. It was Rattigan's case, made clear to the jury by the judge in the course of his summing-up that, at no time was he party to violence or a plan to use violence against anyone, believing the flat to be empty, and that he departed the scene before any violence occurred and without any realisation that it might occur, waiting in the car for Wyatt in the belief that he could not find it. That was made manifestly clear to the jury and, if they accepted it might be true, the judge's directions and questions required a verdict of not guilty. The only alternative version of events before the jury was that of Wyatt, whose version had Rattigan upon the scene as an active participant (and indeed the protagonist) in violence `spontaneously' applied to the victim, once she had interrupted the burglary. It is plain that the jury accepted the essentials of Wyatt's account (which was in any event consistent with the injuries to the victim) and rejected Rattigan's account that he was absent from the scene when any violence occurred. Although the judge failed to tell the jury in terms that if Rattigan's account was or might be true he was entitled to be acquitted, that was the import of the summing-up and of the questions put to the jury. Acceptance of Rattigan's version of events would plainly have led to his acquittal in answer to questions 6 and 8. Having carefully considered the whole of the summing-up, we are satisfied that the essential issues were made clear to the jury and we are satisfied that Rattigan's conviction was safe.